07/27/2005
June 23 was a typical hot, steamy summer day in Washington, D.C. The 84-degree temperature had made all those marble-mantled monuments to democracy and justice warm to the touch and sent thousands of tourists scurrying for shade. But on Capitol Hill, in the rarified air inside the U.S. Supreme Court, something happened that sent chills running down the spines of American property owners, especially those who own and operate small businesses.
By a 5-4 decision, the court re-interpreted the 214-year-old Fifth Amendment of the Constitution, giving local governments the right to seize private property for public use in the name of “economic development.” Known as the “takings clause,” the last few words of the amendment emphatically state that private property cannot be taken away when needed for the public good without fair compensation.
Americans have long understood the concept of eminent domain. Without it, we would not have a national interstate highway system or effective electrical energy grids.
But in ruling against homeowners whose properties stood in the way of a New London, Connecticut, economic revitalization project, the high court has set a dangerous precedent that could set off a land-grab by local governments all across the country. All local bureaucrats and politicians now need to do to snatch private property is declare that a parcel stands in the way of their idea of economic development.
Even properties not considered blighted could now be condemned to make way for public projects, such as sports arenas and shopping malls, based on a promise that they will create jobs and generate taxes.
It is baffling that Justice John Paul Stevens, who wrote the majority opinion, missed the irony in his own words when he stated: “Promoting economic development is a traditional and long-accepted function of government.” True, but just the opposite will be accomplished when the shops and stores of job-creating, revenue-producing, taxpaying small businesses are seized and bulldozed by mega-developers who are often the only ones to benefit from so-called economic development projects.
But don’t expect the nation’s entrepreneurs to stand back and let the bulldozers come rolling through. Within hours of the court’s misguided re-writing of the amendment, an effort was launched to help the justices more clearly understand the law of the land as handed down by the Founding Fathers. According to the Institute for Justice, at least 25 states are considering changes to eminent domain laws, and in Washington, D.C., Sen. John Cornyn of Texas has introduced the Protection of Homes, Small Businesses and Private Property Act of 2005 (S. 1313), designed to protect Americans from having their property confiscated under the guise of public use. Sen. Cornyn’s bill would apply to all exercises of eminent domain power by the federal government and all exercises by state and local governments using federal funds.
The Supreme Court has taken the Fifth Amendment. Property owners are looking to Congress and the states to take it back and return it to the American people.
Jack Faris is the president of NFIB (the National Federation of Independent Business), the nation’s largest small-business advocacy group. A non-profit, non-partisan organization founded in 1943, NFIB represents the consensus views of its 600,000 members in Washington, D.C., and all 50 state capitals
